Junk the Fourth Amendment
Alec Rawls © 1991/1998 (1200 words) Published in The Stanford Review, 1/8/91.

In my last two articles I have advocated a scheme for protecting liberties directly, so that the protection of liberty will not have to rely on restrictions on law enforcement. If this scheme is instituted then procedural restrictions on the police and the courts can be relaxed in important ways.

Consider the "exclusionary rule" which excludes improperly obtained ev idence from court. Restrictions on search and other police procedures provide citizens with a measure of protection for the unenumerated liberties of the Ninth Amendment. If we can identify the full scope of unenumerated liberties then we can relax the exclusionary rule when prosecuting laws that do not threaten these liberties.

I argued earlier that the full ideal of liberty that our Constitution means to protect is just J.S Mill's principle of liberty (that the law should never place the indirect, or vicarious, interests of some over the direct interests -- the life or liberty -- of others). So long as we maintain the exclusionary rule whenever an activity could conceivably be protected by Mill's principle, then we can relax it in other cases without threatening the concept of liberty that the Constitution is trying to protect.

Procedural restrictions would still be necessary to insure fairness and to preserve the rule of law, but where Mill's principle is silent, there would no longer be a constitutional interest in the aquittal of the accused. So long as some other method can be found to enforce restrictions on search (such as suspension without pay for any officer who culpably neglects the rules) there would be no reason to throw improperly obtained evidence out of court.

The Supreme Court's new version of the exclusionary rule -- that evi dence should be excluded only if law enforcement officers act in bad faith -- is ineffective on both counts. First, this "bad faith" rule fails to protect our liber ties from police mistakes. Second, we should be loathe to throw out evidence of legitimately criminal activity (even in cases of culpable error) so long as there are other ways to enforce restrictions on search.


Junk the Fourth Amendment

If we were to pass a constitutional amendment that enumerated the full ideal of protected liberty, then not only could we relax the rules for admitting evidence from improper search, we could also relax the definition of improper search. If citizens no longer had to contend with laws that infringe their liberties they could stop being so jealous about where they let police offi cers look.

As it is now, with the police interested in all sorts of "illicit" materials and activities that should not be criminal in the first place, people want the police to jump through hoops before they can carry out a search. If the police were only out to stop crimes against persons and property then the standards of probable cause could be knocked in half.

Even more enticing, many non-invasive random or blanket searchs could be allowed. For instance, the government could be empowered to col lect fingerprint and DNA samples from everyone in the country. These prints could be kept in computer files and routinely checked against all fingerprint, blood, hair or semen samples found at the scene of any crime.

As it is, collecting fingerprints and DNA "fingerprints" without cause vi olates the Fourth Amendment's prohibition against unreasonable searches and seisures, and this is appropriate, so long as this information could be used to prosecute people for activities that are not properly criminalizable. But if the full ideal of liberty were to receive explicit constitu tional protection, these searches would pose no risks to our protection of liberty.

The benefits of universal "fingerprinting" would be huge. No one would get away with stranger rape again. Also, as the use of indelible personal information for identification in all kinds of transactions proliferated, it would become impossible to remain a fugitive. Any kind of violent crime or street crime would become fraught with increased risk. Law enforcement might become so efficient that we could actually start devoting some manpower to white collar crime.

Highway sobriety checks, which now face steady court challenges, would also become admissable. Driving under the influence of alcohol threatens the direct interests of others and is not protected by Mill's principle of liberty. Evidence of any other legitimately criminal activity discovered by this kind of random search would also be admissable in court.


Let the police be the good guys

If the police were no longer enforcing illiberal laws the most important consequence might be the changed attitude people would have towards the police.

When I was a teenager in the seventies the police in my town were the enemy. They dedicated themselves to persecuting hippies and greasers and high school kids. I don't think they did anything else. Even now I have to force myself to turn to the police.

Three years ago I heard a frightened woman cry outside my window and a determined voice tell her that now she was going to learn what it felt like to satisfy a man. Instead of calling the police I grabbed a knife and snuck out after them. I didn't realize they were in a car and the criminal escaped with his victim.

I let a woman be raped because my distrust of the police is so deep seated as to be instinctive. There is a whole generation like me, just as prohibition taught an earlier generation to distrust the police, just as the criminal ap proach to every problem in the ghetto has created a class war with the police now.

In 1964 Kitty Genovese was murdered in a prolonged attack outside her apartment. 37 neighbors heard her cries and failed to call the police. Commentators decried this astounding new selfishness -- this "not wanting to get involved". But calling the police anonomously does not require "getting involved". The explanation lies elsewhere.

When asked why they didn't call the police, neighbor after neighbor replied: "I don't know". Well I know, because I did the same thing myself. In a society where the police enforce all kinds of illiberal laws, you don't lightly sic the police on others, even if you are worried -- even scared -- that someone might be getting hurt.

One woman said "We thought it was a lover's quarrel". Right lady. But the point is that any uncertainty raises the spectre that one is doing wrong by calling the police. One old man belatedly did call the police, after pacing for an hour, walking on the roof, and finally calling a friend to ask what he should do. He should have felt no doubt, but we are not analytic creatures for the most part. We proceed by association more than by understanding, and ambiguous feelings carry over to situations where they do not logically apply.

Sure, other pathologies can also be involved. People don't want to call the police now because they don't want to re veal that they failed to call earlier. But the starting point remains their original mixed feelings. It is time to remove this ambiguity and finally raise a generation that can learn to trust the police.

(Alexander Rawls is pursuing a Ph.D. in economics.)


Next article in Reframing series: Junk the Fifth Amendment

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Date Last Modified: 8/27/99
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